Keeler v. Joy

MOORE, Circuit Judge:

New York City’s Rent and Rehabilitation Law, Title Y, § Y51-1.0 et seq., Administrative Code of the City of New York, prescribes a procedure through which a landlord, seeking to reclaim a rent controlled apartment for his own use, may, by application to the City, evict a tenant. The issue in this case is whether the notice and conference afforded a tenant by the City satisfy the demands of due process. The trial court held that they do and granted summary judgment for the City against the tenants.1 We affirm.

BACKGROUND

The relevant part of the Rent and Rehabilitation Law provides that a landlord is entitled to the issuance of a certificate of eviction by the District Rent Director where the “landlord seeks in good faith to recover possession of a housing accommodation because of immediate and compelling necessity for his own personal use and occupancy or for the use and occupancy of his immediate family; provided, however, that where the housing accommodation is located in a building containing twelve or less housing accommodations and the landlord does not reside in the building and the landlord seeks in good faith to recover possession for his own personal use and occupancy, an immediate and compelling necessity need not to be established.. . . ” § Y51-6.0(b).

A landlord seeking a certificate of eviction must file a two-page application with the City. Item ten of the application asks the landlord to state the relationship to the landlord of the person for whom occupancy is sought, if occupancy is sought for a member of the landlord’s immediate family. Item twelve of the application states:

“If your necessity is based on poor health, submit medical proof of disability with this application and describe below the period and nature of disability. Your doctor may be required to appear and give oral testimony.”

Item thirteen asks the landlord to:

“State fully below any additional facts which indicate that there exists an immediate and compelling necessity for personal use and occupancy by you or members of your immediate family. ... If housing accommodations are located in a building containing twelve or less housing accommodations and you do not reside in the building and you seek to recover possession for your own personal use, an immediate and compelling necessity need not be established”.

The application notes above the landlord’s signature that: “Application is hereby made for a certificate of eviction based upon the facts herein above stated”.

After receiving the landlord’s application, the District Rent Director must mail the tenant a copy of the application and a notice of the commencement of eviction proceedings. The notice states, among other things, that:

“Attached hereto is a copy of the application for a certificate filed by your landlord. The facts set forth in the application may entitle him to such certificate of eviction under the rent regulations. You are hereby afforded an opportunity to oppose this application by filing an answer.”

A review of the answers filed by tenants shows that almost all of the answers argue that the landlord does not really seek to reclaim the apartment for his own use but is merely seeking a higher rent for the apartment.

*1046The next step is the holding of a conference by a hearing officer in the District Rent Director’s office. Both the landlord and the tenant are notified, of the conference and informed that “Both landlord and tenant may be represented by counsel and may bring with them witnesses and written evidence in support of their contentions”. At the conference the tenant may question opposing witnesses. No transcript of the conference is made. The hearing officer provides the District Rent Director with a written report on the conference. The District Rent Director then decides whether facts militating eviction have been established, and, if they have, issues a certificate of eviction. The report of the hearing officer to the District Rent Director is made available to the parties after the District Rent Director’s decision has been made. Any mistakes or omissions in the report can be raised in subsequent proceedings.

If a certificate of eviction is issued by the District Rent Director, the tenant may file a protest with the Commissioner of the Department of Rent and Housing Maintenance. In a protest proceeding, the Commissioner reviews all of the evidence in the record, considers the matter de novo, and makes a decision. A tenant may, on denial of a protest, bring an Article 78 proceeding in the New York State Supreme Court.

I.

Appellants contend that the conference procedures are constitutionally inadequate. They allege three defects.

The tenants first argue that they are denied the right to cross-examine opposing witnesses. The trial court implicitly found that there was no genuine issue of fact here when it found that tenants may question opposing witnesses. Plaintiffs’ own statement under Rule 9(g) noted the City’s policy that, in these conferences, both “sides should be given an opportunity to state their case and to cross examine witnesses”.

The tenants’ second quarrel is with the fact that the report of the hearing officer at the conference to the District Rent Director is not available to the parties until after the District Rent Director has made his decision. Yet this complaint has little merit. To allow the parties a second chance to speak by allowing them to respond to this internal memo before the District Rent Director made a decision would only complicate and delay the proceedings without enhancing the fairness of the process to any significant extent. Moreover, any unfairness that might result from serious mistakes or omissions in the report can be raised in the protest proceeding or in an Article 78 proceeding.

Third, the tenants argue that the lack of a transcript of the conference violates due process. They argue that the District Rent Director cannot properly appraise the evidence taken by the hearing officer without a transcript. The District Rent Director, does, however, receive a written report on each conference from the hearing officer.

The conference procedures thus provide plaintiffs with “the opportunity to be heard ‘at a meaningful time and in a meaningful manner’, Armstrong v. Mamo, 380 U.S. 545, 552, [85 S.Ct. 1187, 1191, 14 L.Ed.2d 62] (1965),” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976), and so meet the requirements of due process.

II.

Appellants argue that the notice of the conference fails to adequately inform the tenants of the issues upon which the decision on eviction will turn; that in these proceedings helpless tenants neglect key issues and argue irrelevancies; that the tenants’ proper defenses are unasserted and lost; and that the tenants’ legal rights are thus trampled. Yet the record shows that this disturbing vision of the eviction proceedings is chimerical.

In fact, these proceedings are fair to the tenants. The notice and attached application give the tenants an accurate viéw of the issues upon which the proceedings will turn. The record shows that the answers filed by the tenants are consistently responsive to the issues upon which the proceed*1047ings will turn. Finally, the landlord must make his case in conference before both the tenant and the hearing officer. Not only the tenant but also the hearing officer have an opportunity to probe the landlord’s good faith. The failure to provide for a trial-type hearing in the rent agency is not proof that the tenant is ipso facto deprived of due process.

The decision of the District Court is affirmed.

The author of this opinion is also in agreement with Judge Tenney’s well-reasoned, and well-written concurring opinion.

. Two cases were brought against Daniel W. Joy individually and as Deputy Commissioner, (1) by Jack Keeler, et al. in the Eastern District of New York and (2) by Fay Genuard et al. in the Southern District of New York. The Genuard case was transferred to Judge Platt in the Eastern District and a single opinion (489 F.Supp. 568) was delivered and a single judgment entered thereon dismissing plaintiffs’ complaints. From this judgment the respective plaintiffs appeal.